Bruno v. Smith

Filing 33

ORDER ADOPTING R&R for 27 Report and Recommendation. The Court, having conducted a thorough review, finds no error in the R&R. The Court therefore adopts Judge Davison's R&R. Petitioner's writ of habeas corpus is accordingly dismissed with prejudice. As Petitioner has not made a substantial showing of the denial of a constitutional right, a Certificate of Appealability shall not be issued, see 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 111-1 2 (2d Cir. 2000), and the Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this judgment on the merits would not be taken in good faith, see Coppedge v. United States, 369 U.S. 438, 445 (1962) ("We consider a defendant's good faith... demonstrated when he seeks appellate review of any issue not frivolous."); Burda Media Inc. v. Blumenberg, 731 F. Supp. 2d 321, 322-23 (S.D.N.Y. 2010) (citing Coppedge and noting that an appeal may not be taken i n forma pauperis if the trial court certifies in writing that it is not taken in good faith). The Clerk of the Court is respectfully directed to enter a judgment in favor of Respondent and close the case. (Signed by Judge Kenneth M. Karas on 8/2/2017) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

FELIX BRUNO,
Petitioner,
No. 13-CV-8110 (KMK) (PED)
v.

ORDER ADOPTING R&R
BRANDON SMITH, Superintendent, Franklin
Correctional Facility,
Respondent.

KENNETH M. KARAS, District Judge:
On November 1, 2013, Felix Bruno ("Petitioner"), proceeding pro se, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"), challenging his May 26,
1998 judgment of conviction in New York state court and his concurrent terms of imprisonment
of 25 years to life for second degree murder and seven and one-half to 15 years for second
degree criminal possession of a weapon. (See Pet. 1 (Dkt. No. 1).) On April 7, 2014, the case
was referred to Magistrate Judge Paul E. Davison ("Judge Davison"), pursuant to 28 U.S.C.
§ 636(b)(l). (See l)kt. (minute entry for Apr. 7, 2014).) On October 25, 2016, Judge Davison

issued a Report & Recommendation (the "R&R"), recommending that the Petition be denied.

(See R&R 17 (Dkt No. 27).) Petitioner filed objections to the R&R on November 10, 2016. (See
Pet'r's Obj. to Proposed Recommendation ("Pet'r's Obj.") (Dkt. No. 30).) 1 For the reasons set
forth below, the Court adopts the R&R.

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The Court notes that while Petitioner timely signed and dated his objections, they were

not filed until shortly after the allotted 17 days had expired.

I. Discussion
A. Standard of Review

I. Review qf a fy'.fagistrate Judge's Report & Recommendation
A district court reviewing a report and recommendation addressing a dispositive motion
"may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(l). Under 28 U.S.C. § 636(b)(l) and Federal Rule of
Civil Procedure 72(b), a party may submit objections to the magistrate judge's report and
recommendation. The objections must be "specific" and "written," Fed. R. Civ. P. 72(b)(2), and
must be made "[w]ithin 14 days after being served with a copy of the recommended disposition,"
id.; see also 28 U.S.C. § 636(b)(l), plus an additional three days when service is made pursuant
to Federal Rule of Civil Procedure 5(b)(2)(C), (D), or (F), see Fed. R. Civ. P. 6(d), for a total of
seventeen days, see Fed. R. Civ. P. 6(a)(l).
"A district court evaluating a magistrate judge's report may adopt those portions of the
report [and recommendation] to which no 'specific, written objection' is made, as long as the
factual and legal bases supporting the findings and conclusions set forth in those sections are not
clearly erroneous or contrary to law." Adams v. N. Y. State Dep 't of Educ., 855 F. Supp. 2d 205,
206 (S.D.N.Y. 2012), ajf'd sub nom. Hochstadt v. N. Y State Educ. Dep 't, 547 F. App'x 9 (2d
Cir. 2013). However, where a party timely objects to a report and recommendation, as Petitioner
has done here, the district court reviews the parts of the report and recommendation to which the
party objected de novo. See 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3). "When a
[petitioner] simply rehashes the same arguments set forth in [his] original petition, however, such
objections do not suffice to invoke de novo review of the [r]eport." Aponte v. Cunningham, No.
08-CV-6748, 2011WL1432037, at *1 (S.D.N.Y. Apr. 11, 2011) (italics omitted); see also Hall

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v. Herbert, Nos. 02-CV-2299, 02-CV-2300, 2004 WL 287115, at *1 (S.D.N.Y. Feb. 11, 2004)
("[T]o the extent that a party simply reiterates his original arguments, the [c ]ourt reviews the
report and recommendation only for clear error.").
2. Procedural Default
A federal court "will not consider an issue of federal law on direct review from a
judgment of a state court if that judgment rests on a state-law ground that is both 'independent'
of the merits of the federal claim and an 'adequate' basis for the court's decision." Harris v.

Reed, 489 U.S. 255, 260 (1989). A state court decision is "independent" when it "fairly appears"
to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citing

Coleman v. Thompson, 501 U.S. 722, 740 (1991)). A decision is "adequate" ifit is '"firmly
established and regularly followed' by the state in question." (larcia v. Lewis, 188 F.3d 71, 77
(2d Cir. 1999) (some internal quotation marks omitted) (quoting Ford v. Georgia, 498 U.S. 411,
423-24 (1991)). "Although this doctrine originated in the context of state-court judgments for
which the alternative state and federal grounds were both 'substantive' in nature, the doctrine
'has been applied routinely to state decisions forfeiting federal claims for violation of state
procedural rules."' Harris, 489 U.S. at 260--61; see also Coleman, 501 U.S. at 732 ("[A] habeas
petitioner who has failed to meet the State's procedural requirements for presenting his federal
claims has deprived the state courts of an opportunity to address those claims in the first
instance.").
"[I]f it fairly appears that the state court rested its decision primarily on federal law, [a]
[c ]ourt may reach the federal question on review" unless the state court "clearly and expressly
state[d] that its judgment rest[ed] on a state procedural bar." Harris, 489 U.S. at 261, 263
(internal quotation marks omitted). This "plain statement" rule applies "only when it fairly

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appears that a state court judgment rested primarily on federal law or was interwoven with
federal law." Coleman, 501 U.S. at 739. When analyzing whether a state court decision rested
primarily on federal law or was interwoven with federal law, the court should consider "(I) the
face of the state-court opinion, (2) whether the state court was aware of a procedural bar, and (3)
the practice of state courts in similar circumstances." Jimenez, 458 F.3d at 145 n.16 (2d Cir.
2006). In cases where there is no evidence the state court rested its decision on federal law, a
federal habeas court may "presume that silence in the face of arguments asserting a procedural
bar indicate[s] that [an] affirmance was on state procedural grounds." Quirama v. Michele, 983
F .2d 12, 14 (2d Cir. 1993 ). "Dismissal for a procedural default is regarded as a disposition of the
habeas claim on the merits." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
New York permits criminal defendants only one application for direct review. See N.Y.
Comp. Codes R. & Regs. tit. 22, § 500.20(a)(2); Jimenez, 458 F.3d at 149 ("[The petitioner] has
already taken his one direct appeal [under New York law] . ·... "). "New York procedural rules
bar its state courts from hearing either claims that could have been raised on direct appeal but
were not, or claims that were initially raised on appeal but were not presented to the Court of
Appeals." Sparks v. Burge, No. 06-CV-6965, 2012 WL 4479250, at *4 (S.D.N.Y. Sept. 28,
2012). Accordingly, in those situations, a petitioner no longer has any available state court
remedy, and the unexhausted claims are therefore deemed exhausted, but procedurally barred.

See Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) ("If a habeas applicant fails to exhaust
state remedies by failing to adequately present his federal claim to the state courts so that the
state courts would deem the claim procedurally barred, we must deem the claim procedurally
defaulted." (alteration and internal quotation marks omitted)); see also Aparicio, 269 F.3d at 90
(noting the reality that deeming an unpresented claim to be exhausted is "cold comfort"). "An

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applicant seeking habeas relief may escape dismissal on the merits of a procedurally defaulted
claim only by demonstrating 'cause for the default and prejudice' or by showing that he is
'actually innocent' of the crime for which he was convicted." Carvajal, 633 F.3d at 104
(quoting Aparicio, 269 F.3d at 90); see also Dretke v. Haley, 541U.S.386, 388 (2004) ("[A]
federal court will not entertain a procedurally defaulted constitutional claim in a petition for
habeas corpus absent a showing of cause and prejudice to excuse the default," or a showing that
the petitioner "is actually innocent of the underlying offense .... ").

B.

Petit~oner's

Objections

In his R&R, Judge Davison found that "the instant habeas petition became time-barred as
of April 25, 1997," (R&R 13), and that Petitioner was neither entitled to equitable tolling nor an
equitable exception to the limitations period, (see id at 13-17).
Petitioner raises objections to the R&R, which can be broadly categorized as identifying
(1) issues with the testimony offered at trial and (2) a claim pursuant to Schlup v. Delo, 513 U.S.
298, 324 (1995), detailing new purportedly reliable evidence that was not presented at trial. (See

generally Pet' r's Obj.). Yet, none of Petitioner's objections speaks to the time bar that Judge
Davison found precluded the relief Petitioner seeks. While new evidence may entitle a petitioner
to an equitable exception to a statute of limitations, Judge Davison correctly found that Petitioner
had not demonstrated that "more likely than not, in light of the new evidence, no reasonable juror
would find him guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 538 (2006).
Put simply, Petitioner's objections reiterate challenges to the testimony presented at (or excluded
from) trial, but Petitioner does not actually object to the findings in Judge Davison's R&R.

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Petitioner cites the testimony of Jacqueline Font, who he claims "was merely repeating
... a [s]tatement that Alex Rios wrote[] and told her to say[J to the police." (Pet'r's Obj. 2.) 2
Petitioner further claims that "[a]ll the information leading to ... [P]etitioner was given by Mr.
Rios ... and Mr. Rios's girlfriend which was told to her by Mr. Rios, for the purpose of telling it
to the police." (Id at 3.) Petitioner contends that "the jury never heard any testimony" from
Carmen Otero, which mentions plans to kill the victim and those involved, but "there is [n]o
mention of ... Petitioner." (Id. at 2.) Petitioner claims that in her testimony, Ms. Font repeated
Ms. Otero' s statement, but changed it to add the Petitioner. (See id.) Petitioner also cites an
"[i]nvestigation report by Detective Michael Henneberry" which "was never brought to the
jury['s] attention" and which Petitioner claims supports the fact that "everyone [Detective
Henneberry] interviewed told various lies." (Id.)
Petitioner alleges that he was denied his "request to question Detective Feliciano
concerning his involvement in this case." (Id. at 4.) He additionally contends that "[i]t was
never brought to the jury that the police ha[ d] another [s]uspect[,] 'Manolo[']," and that there
were "numerous 'accompli[ces]' that had knowledge of the crime or had played a part in the
crime" and "[n]one of these witnesses was allowed to testify." (Id.)
Petitioner fails to explain how the statements of Mr. Rios, Ms. Otero, Detective
Henneberry, or "numerous 'accompli[ces]"' are exculpatory. (Id.) In fact, Petitioner admits that
Mr. Rios "had told and given many version[s] of what happen[ed][] and [w]ho [w]ere his
accompli[ ces ]," (id. at 2), casting doubt on the credibility of any purportedly exculpatory
statements by Rios. Similarly, the fact that Ms. Otero's statement is based on what "[Alex Rios]

2

Alexander Rios, Petitioner's co-defendant, was acquitted of all charges. (See R&R 1

n.l.)
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had told her," (id.), suggests the same issues with the reliability. Detective Henneberry's report
purportedly offers evidence that "everyone he interviewed told various lies" and "that Manolo
was a suspect," (id.), but Petitioner does not explain how this absolves him of the crime. Indeed,
Detective Henneberry's report inculpates Petitioner, stating that "[the victim] was ... sitting in
the front passenger seat and another subject whom Rios could not identify but thought ... could
be ... [Petitioner], was in the back seat." (Pet'r's Obj. Ex. 3, at 2; see also id. ("Earlier in the
evening ... Rios saw ... [Petitioner] ... in [the victim's] apartment."); id. (noting Petitioner and
others "were interviewed" and "told various lies and ... could have been involved in one way or
the other").) Contrary to his contention, Petitioner has not "put forward substantial evidence
pointing to a different suspect," (Pet'r's Obj. 3), but rather identifies evidence that at best,
convolutes his claims, and at worst, discredits those witnesses he seeks to offer in support of his
Petition.
Additionally, Petitioner contends that "[a]ll of the witnesses['] statements were written by
Det[ective] Bentivenga and read back to the witnesses who had very little understanding of the
[E]nglish[]language." (Id. at 4.) In his R&R, Judge Davison found that in response to
Petitioner's assertion that English is his second language, Petitioner had "not alleged any
mitigation efforts that satisfy the diligence requirement" and did not explain the years-long gaps
between his filings. (R&R 15.) However, here, Petitioner raises objections not to his own
language barrier, but to that of witnesses that gave statements in his case. (See Pet' r's Obj. 4.)
Petitioner fails to identify these witnesses, specify their level of proficiency in English, and most
importantly, explain how this alleged detail entitles him to equitable tolling. As "the record
provides no basis for a credible and compelling claim of actual innocence," (R&R 16), and the
Court agrees that the Petition is barred by the statute of limitations, the Petition is dismissed.

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II. Conclusion
The Court, having conducted a thorough review, finds no error in the R&R. The Court
therefore adopts Judge Davison's R&R. Petitioner's writ of habeas corpus is accordingly
dismissed with prejudice.
As Petitioner has not made a substantial showing of the denial of a constitutional right, a
Certificate of Appealability shall not be issued, see 28 U.S.C. § 2253(c)(2); Lucidore v. N. Y.
State Div. of Parole, 209 F.3d 107, 111-12 (2d Cir. 2000), and the Court further certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this judgment on the merits would not be
taken in good faith, see Coppedge v. United States, 369 U.S. 438, 445 (1962) ("We consider a
defendant's good faith ... demonstrated when he seeks appellate review of any issue not
frivolous."); Burda Media Inc. v. Blumenberg, 731 F. Supp. 2d 321, 322-23 (S.D.N.Y. 2010)
(citing Coppedge and noting that an appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith).
The Clerk of the Court is respectfully directed to enter a judgment in favor of Respondent
and close the case.

SO ORDERED.
DATED:

August~' 2017

White Plains, New York
ENNETHM. A
UNITED STATES DISTRICT

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